Mississippi defends 15-week abortion ban in appeals court

A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

Posted: Oct 7, 2019 5:48 PM

NEW ORLEANS (AP) — A federal court that rejected Mississippi's 15-week abortion ban should have let the state present evidence about whether a fetus experiences pain, an attorney for the state argued Monday.

But a lawyer for Mississippi's only abortion clinic said the Supreme Court has been clear that a woman has a right to have an abortion before the fetus is viable.

The arguments came during a hearing at the 5th U.S. Circuit Court of Appeals on a Mississippi law that would ban most abortions after 15 weeks of pregnancy. It's one of many laws pushed by conservative states in recent years, aimed at trying to persuade the increasingly conservative Supreme Court to further restrict the amount of time when abortion is legally available, or even to overturn the 1973 Roe v. Wade decision.

That decision said women have the right to terminate pregnancies until viability, when a fetus can survive outside the womb.

After Republican Gov. Phil Bryant signed Mississippi's law in 2018, the Jackson Women's Health Organization immediately sued. U.S. District Judge Carlton Reeves blocked the law from taking effect, writing that it "unequivocally" violates women's constitutional rights because it bans abortion weeks before viability.

Reeves wrote that viability must be determined by trained medical professionals, and the "established medical consensus" is that viability typically begins at 23 to 24 weeks after the pregnant woman's last menstrual period.

Mississippi and its supporters appealed to the 5th Circuit. Mississippi contends that Reeves overstepped his authority by only considering the case through the prism of viability.

"From that point on the outcome of this case was preordained," Paul Barnes, a special assistant attorney general, told the three-judge panel.

Barnes also suggested the 15-week standard had little effect on the Jackson clinic because they already refuse to perform abortions after 16 weeks.

"It is a prohibition for one week," Barnes said.

Hillary Schneller, a lawyer from the Center for Reproductive Rights which is representing the clinic, argued that the Supreme Court has been clear through decades of case law about a woman's right to an abortion before fetal viability.

"There is no dispute that 15 weeks is well before viability," she said.

At least one of the 5th Circuit judges seemed skeptical that viability should be the only standard. James C. Ho repeatedly asked whether a fetus feeling pain could ever be a factor in determining whether an abortion can be carried out. At one point, he asked if pain is "irrelevant."

Ho also questioned why discussion of the fetal pain question wasn't permitted during the lower court's proceedings.

"Where would we get that factual evidence if not at trial?" he asked.

The other justices — Patrick E. Higginbotham and James L. Dennis — asked few or no questions. Ho was nominated by President Donald Trump in 2017, Higginbotham by President Ronald Reagan in 1982 and Dennis by President Bill Clinton in 1995.

The 5th Circuit handles cases from Mississippi, Louisiana and Texas, and it's generally considered one of the most conservative appeals courts in the U.S.

Louisiana passed a 15-week abortion ban in 2018, but it takes effect only if the appeals court upholds the Mississippi law.

Even as the court fight continues over the 15-week ban, Mississippi lawmakers passed another law this year banning most abortions at about six weeks, when fetal cardiac activity can be detected. Reeves also blocked that law, saying it "smacks of defiance to this court." Attorneys are filing separate arguments about it to the 5th Circuit. The hearing Monday did not reference the 6-week ban.

Mississippi Coronavirus Cases

Data is updated nightly.

Cases: 320292

Reported Deaths: 7390
CountyCasesDeaths
DeSoto22299271
Hinds20782424
Harrison18455317
Rankin13933282
Jackson13740249
Madison10276225
Lee10068176
Jones8475167
Forrest7845153
Lauderdale7263242
Lowndes6524150
Lamar636688
Lafayette6315121
Washington5427138
Bolivar4842133
Panola4671110
Oktibbeha466398
Pearl River4610148
Marshall4576105
Warren4440121
Pontotoc426173
Monroe4163136
Union415977
Neshoba4066180
Lincoln4009113
Hancock387687
Leflore3516125
Tate342586
Sunflower339491
Pike3374111
Alcorn327474
Scott320374
Yazoo314771
Adams308586
Itawamba305178
Copiah299966
Coahoma299084
Simpson298689
Tippah292468
Prentiss284461
Leake272474
Marion271480
Covington267283
Wayne264842
Grenada264087
George252451
Newton249064
Tishomingo232469
Winston230382
Jasper222148
Attala215173
Chickasaw210759
Holmes190574
Stone188833
Clay187954
Tallahatchie180041
Clarke178980
Calhoun174232
Yalobusha167940
Smith164134
Walthall135547
Greene131934
Lawrence131424
Montgomery128943
Noxubee128034
Perry127538
Amite126542
Carroll122330
Webster115132
Jefferson Davis108534
Tunica108127
Claiborne103130
Benton102325
Humphreys97533
Kemper96729
Franklin85023
Quitman82316
Choctaw79218
Wilkinson69632
Jefferson66328
Sharkey50917
Issaquena1696
Unassigned00

Alabama Coronavirus Cases

Cases: 549394

Reported Deaths: 11328
CountyCasesDeaths
Jefferson810851571
Mobile42180832
Madison35733524
Tuscaloosa26186460
Shelby25638255
Montgomery25103615
Baldwin21921314
Lee16301176
Calhoun14725329
Morgan14650286
Etowah14192364
Marshall12465230
Houston10798289
Elmore10302214
Limestone10191157
St. Clair10166251
Cullman9975201
Lauderdale9621250
DeKalb8978190
Talladega8467184
Walker7351281
Autauga7244113
Jackson6993113
Blount6957139
Colbert6418140
Coffee5650128
Dale4931116
Russell455241
Chilton4476116
Franklin432082
Covington4283123
Tallapoosa4137155
Escambia402380
Chambers3731124
Dallas3609158
Clarke353361
Marion3264107
Pike314878
Lawrence3135100
Winston283672
Bibb268664
Geneva258782
Marengo250566
Pickens237062
Barbour234460
Hale227078
Butler225071
Fayette219763
Henry194844
Randolph187744
Cherokee187545
Monroe181041
Washington170639
Macon163051
Clay160159
Crenshaw156157
Cleburne153744
Lamar147237
Lowndes142154
Wilcox126830
Bullock124642
Conecuh113830
Coosa112129
Perry108826
Sumter106032
Greene93734
Choctaw62125
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